WOMENS RIGHT MOOT COURT COMPETITION

(EQUALITY MOOT COURT ON THE MAPUTO PROTOCOL)

TH
4 MAY, 2017

BEFORE THE AFRICAN COURT ON HUMAN AND PEOPLE’S RIGHTS

BETWEEN

FEDERATION OF WOMEN LAWYERS OF BANISTA…………………APPLICANT

AND

THE REPUBLIC OF BANISTA......................................................….......RESPONDENTS

APPLICANT ’S MEMORIAL

TABLE OF CONTENTS
SUMMARY OF THE APPLICANTS ARGUMENTS ​3
PRELIMINARY ISSUES ​4
Jurisdiction of the Court ​4
Ineffectiveness of the Respondents withdrawal from the Charter on the Establishment of the
Court ​5
Locus Standi ​7
Admissibility ​8
WHETHER BANISTA HAS VIOLATED ITS OBLIGATIONS UNDER THE
MAPUTO PROTOCOL; AND OTHER INTERNATIONAL HUMAN RIGHTS
INSTRUMENTS IN RESPECT OF THE CONTINUING FAILURE OF THE
PARLIAMENT TO ENACT LEGISLATION FOR THE IMPLEMENTATION OF
THE TWO-THIRDS GENDER RULE IN ELECTIVE POSITIONS. ​10
Equality of men and Women in the political sphere ​10
Respondent State’s violation of its’ obligation to ensure Equality as founded under its’
Constitution and International Instruments ​12
WHETHER BANISTA HAS VIOLATED ITS OBLIGATIONS UNDER THE
MAPUTO PROTOCOL AND OTHER INTERNATIONAL HUMAN RIGHTS
INSTRUMENTS IN RESPECT OF THE CONTINUING FAILURE OF THE
EXECUTIVE TO ENSURE TWO-THIRDS GENDER RULE IS IMPLEMENTED IN
APPOINTMENTS TO STATE ORGANS AND OTHER PUBLIC
INSTITUTIONS. ​13
The Power vested on the Executive of Banista to appoint ​13
Discrimination of women during appointments which violates not only the Constitution of
Banista but also International instruments that Banista has ratified and are part of its laws
under Article 2(5)&(6) of its’ Constitution ​14
PRAYERS ​15

SUMMARY OF THE APPLICANTS ARGUMENTS

ISSUE ONE: Firstly, your Honours, the Applicants submits that this Court has jurisdiction to
entertain this matter and render a verdict therefrom as the jurisdiction has been so well
founded in Article 3 of the Courts protocol. Secondly, the Applicants submits that the
renunciation of the Courts Protocol by the Respondent State is in effective and is only but an
attempt to circumvent the realization of human rights. Thirdly, the Applicant submits it has
approached this Court as of right as a non-governmental organization with observer status
with this Court. Lastly, that the matter is admissible as all the prerequisites of Article 56 of
the African Charter have been fulfilled.
ISSUE TWO: The Applicants submit in this regard that the Respondent has not only
violated but has continued to violate women’s right to political participation even with the
Constitution dictating that the State shall take responsibility to ensure not more than two-
thirds of persons in elective and appointive positions are of the same gender which failure is
manifest in the failure of the legislature to enact as witnessed by paragraph 14 of the facts.
ISSUE THREE: The Applicant submits that the State is discriminative of women in
consideration for appointive posts which authority could have been used to ensure there is
equity by the executive.
PRAYERS: Reasons WHEREOF the Applicants prays to this Court to find that:
The case is admissible and that it has jurisdiction to adjudicate upon it
That the Respondent State has violated its obligations under national and international
Instruments with regards to women representation in elective and appointive posts.
And that the Costs to be in cause.

1. PRELIMINARY ISSUES
1.1. Jurisdiction of the Court
Your Honours,
It is the Applicant’s submission that the Court has jurisdiction over all cases and disputes
submitted to it concerning the interpretation and application of the African Charter on Human
and Peoples' Rights, (the Charter), the Protocol and any other relevant human rights
instrument ratified by the States concerned.
Your Honours the question then begs what is jurisdiction? Jurisdiction has been defined by
the Black’s Law Dictionary as, the authority or power of a Court of law to adjudicate upon a
matter brought before it (emphasis added). The effect of the foregoing definition is found in
the case of Owners of Motor Vessel Lilian S v. Caltex Oil where the Court stated,
“Jurisdiction is everything without which a Court cannot make one more step and must down
its tools…”
In this regard the Applicant submits that this Court has jurisdiction to entertain this matter for
the Republic of Banista had ratified the Protocol on the Establishment of this Honourable
Court. To further buttress on this point the State of Banista has made a declaration accepting
the Court to receive cases from individuals and non-governmental organizations under
Article 34(6) which provision finds the Applicant’s locus standi.
The African Court in the case of Urban Mkandawire v. The Republic of Malawi in
determining whether it had jurisdiction to entertain the matter reaffirmed the provisions of
Article 3 of the Protocol on the Establishment of the Court and found that the case was
properly placed before it as the Applicants had met all the requirements that needed to be
fulfilled which first included the proof of the foundation of the violations in the African
Charter.
1.2. Ineffectiveness of the Respondents withdrawal from the Charter on the
Establishment of the Court
Your Honours, withdrawal defined means to denounce or pull out of. From the reading of
paragraph 16 of the statement of facts we find that Banista has moved to withdraw from the
Charter on the Establishment of the Court by enacting the “The African Court
Renunciation Act” and further that a communication of the withdrawal has been sent to the
Chairperson to the African Union Commission.
However, neither the African Charter on Human and Peoples’ Rights nor the Protocol to the
African Charter contain a provision on denunciation for which it cannot be argued by the
Respondent state that it has followed the right procedure in denouncing the Charter on the
establishment of this Court.
The 1956 Vienna Convention on the Law of Treaties, to which Banista can reasonably be said
is a party to, provides under Article 56 that treaties that do not contain a denunciation clause
are not subject to denunciation or withdrawal unless it is established that the parties intended
to admit this possibility or the nature of the treaty implies a right of denunciation of
withdrawal.
From the foregoing provision, it is indeed true that the Court’s Protocol does not has neither
express nor implied provision for its denunciation for which case the respondents attempt to
withdraw is an attempt in futility and as a such your honours the Applicant submits, Banista
still has obligations under the said charter that it must respect save as dictated by the doctrine
of puncta sunt servanda.
To this end the Applicant cites the case of Military and Paramilitary Activities in and against
Nicaragua in which the International Court of Justice held:
“But the right of immediate termination of declarations with indefinite duration is far from
established. It appears from the requirements of good faith that they should be treated, by
analogy, according to the law of treaties, which requires a reasonable time for withdrawal
from or termination of treaties that contain np provisions regarding the duration of their
validity.”
It is the Applicants argument that it can be deciphered from the spirit of the Charter and as a
matter of international law and practice that the goal of demanding an advance notice of
withdrawal and putting in place stringent procedures to be followed before a state can
withdraw is to discourage opportunistic defections that may only but cause treaty based
cooperation to unravel.
The Applicant submits that even if it were to concede the fact the Banista has withdrawn
from the Court Protocol the case would still be admissible to the extent that they address
State actions during the period when the State was still a bound by the Protocol and to
support the said position the Applicant seeks refuge under the Vienna Convention (SUPRA)
which further provides under 76 (1)(b) that the termination of a treaty, unless otherwise
agreed does not affect any pre-existing obligations.
In a similar case, the Inter-American Court of Human Rights made a determination on the
basis of the principle of legal certainty by holding in the case of Ivcher Bronstein v Peru
that:
“A unilateral action by a State cannot divest an international Court of jurisdiction it has
already asserted; [where] a State [is allowed to] withdraw its recognition of the Court’s
contentious jurisdiction, formal notification would have to be given one year before the
withdrawal could take effect, for the sake of judicial security and continuity.”
The Republic of Banista cannot claim to avoid State responsibility prescribed by the Courts
Protocol merely on the basis of the enactment of an internal law as which position is well
captured by the Vienna Convention (SUPRA) under Article 27.
1.3. Locus Standi
Your Honours,
Locus Standi has been defined by the Black’s Law Dictionary as the right to bring an action,
to be heard in Court.Locus standi is the ability of a party to demonstrate to the Court
sufficient connection to and harm from the law or action challenged to support that party's
participation in the case.
It is the Applicant’s submissions that it has the locus standi to appear before this Honourable
Court vide the provisions of Article 5 (3) as read with Article 34 (6) which provides that:
The Court may entitle relevant Non-Governmental organizations (NGOs) with observer
status before the Commission, and individuals to institute cases directly before it, in
accordance with article 34 (6) of this Protocol.
Article 34(6) further provides;
At the time of the ratification of this Protocol or any time thereafter, the State shall
make a declaration accepting the competence of the Court to receive cases under article
5 (3) of this Protocol. The Court shall not receive any petition under article 5 (3)
involving a State Party which has not made such a declaration.
1.4. Admissibility
Your Honours,
Admissibility defined means that which may be allowed or conceded; allowable. It is the
Applicant’s submission that this case is admissible before this Court for the reasons that; In
respect of cases brought by NGOs and individuals, Articles 6 and 34(6) of the Protocol
establishing.
In addition to the seven admissibility requirements under Article 56 of the African Charter,
cases brought directly before the Court by individuals and NGOs are admissible only when
the State against which the complaint is brought has made a declaration under Article 5(3) of
the Court’s Protocol accepting the competence of the Court to receive such complaints.
The Court on ruling on admissibility of a case before it as provided by article 6 (2) shall
consider the provisions of article 56 of the Charter which provides that the application or
communication must indicate:
1. Indicate their authors even if the latter requests anonymity,
2. Are compatible with the Charter of the Organisation of African Unity or with the
present Charter,
3. Are not written in disparaging or insulting language directed against the State
concerned and its institutions or to the Organisation of African Unity,
4. Are not based exclusively on news disseminated through the mass media,
5. Are sent after exhausting local remedies, if any, unless it is obvious that this
procedure is unduly prolonged,
6. Are submitted within a reasonable period from the time local remedies are exhausted
or from the date the Commission is seized with the matter, and
 7. Do not deal with cases which have been settled by those States involved in
accordance with the principles of the Charter of the United Nations, or the Charter of
the Organisation of African Unity or the provisions of the present Charter.
The Respondent State of Banista made a declaration accepting the Courts competence and
further that it has accepted complaints to be brought before the Court by individuals and non-
governmental organizations.
It is the Applicant that it has fulfilled all the foregoing requirements as to the admissibility of
this matter. With key attention to requirement 6 the Applicant submits that it has approached
this Court after having exhausted all the local remedies which is a matter of fact as contained
in paragraph 14 of the statement of facts. To support this position the Applicant seeks to rely
on the case of SERAC and CESR v. Nigeriawhere the Commission on ruling on
admissibility of the case before it had this to say:
Article 56(5) requires that local remedies, if any, be exhausted, unless these are unduly
prolonged… and that the purpose of the exhaustion of local remedies requirement is to give
the domestic Courts an opportunity to decide upon cases before they are brought to an
international forum, avoiding contradictory judgments of the law at the national levels...”
Another rationale for the exhaustion of local remedies requirement is that a government
should be notified of a human rights violation in order to have the opportunity to remedy
such violation before being called to account by an international tribunal.

2. WHETHER BANISTA HAS VIOLATED ITS OBLIGATIONS UNDER THE

MAPUTO PROTOCOL; AND OTHER INTERNATIONAL HUMAN RIGHTS
INSTRUMENTS IN RESPECT OF THE CONTINUING FAILURE OF THE
PARLIAMENT TO ENACT LEGISLATION FOR THE IMPLEMENTATION
OF THE TWO-THIRDS GENDER RULE IN ELECTIVE POSITIONS.
International instruments are legal frameworks that are negotiated and agreed upon by States
to address certain realities and to achieve International order. These instruments are to be
honoured and respected. Performances of the obligations there from are to be in good faith as
provided by the Vienna convention on the law of Treaties 1969.
The Republic of Banista is a signatory to various treaties as so captured by paragraph 7 of the
statement of facts on which foundation the Applicant to submit on the following limbs of
arguments.
2.1. Equality of men and Women in the political sphere
Your Honours,
Equality has been defined by the Black’s Law Dictionary (SUPRA) as the state of being
equal especially likeness in power or political status. Further the dictionary gives a definition
with regards to political equality as the sharing of governmental decisions in such a way that,
in the setting of governmental policies, the preference of each citizen is assigned an equal
value.
The Constitution of the Republic of Banista under Article 27 (3) provides women and men
have the right to equal treatment, including the right to equal opportunities in political,
economic, cultural and social spheres.
This position the Applicants submits gives all within the Republic an equal footing in
politics. The African Charter provides under Article 3 provide for equality before the law and
the equal protection of the law and this is ensured by the elimination of all forms of
discrimination as encapsulated by Article 2 of the said Charter.
The Protocol to the Charter (Maputo Protocol) further buttresses this position under Article 9
(1) (a) & (b) that: women have the right to participate without any discrimination in all
elections; and are to be represented equally at all levels with men in all electoral processes.
The African Commission in the case of Purohit and Another v. The Gambia in interpreting
Article 3 stated as follows:
Articles 2 and 3 of the African Charter basically form the anti-discrimination and equal
protection provisions of the African Charter. Article 2 lays down a principle that is essential
to the spirit of the African Charter and it is therefore necessary in eradicating discrimination
in all its guises, while article 3 is important because it guarantees fair and just treatment of
individuals within a legal system of a given country. These provisions are non-derogable and
therefore must be respected in all circumstances in order for anyone to enjoy all the other
rights provided for under the African Charter.
Your Honours, key attention here should be drawn to the African Commissions intention in
the choice of words must and non-derogable in which case the Applicants find their footing
to submit that this are absolute rights.
2.2. Respondent State’s violation of its’ obligation to ensure Equality as founded
under its’ Constitution and International Instruments
Your Honours, as hereinabove stated ratification of international Instruments come with
obligations which obligations are bestowed upon the State. The Republic of Banista by the
dint of it acceding to the Charter accepted the said obligations.
The Charter under Article 1 pegs an obligation on state parties to adopt legislative measures
or other measures to recognise and give effect to the rights, duties and freedoms contained in
the Charter.
The United Nations while recalling article 4(1) of the United Nations Convention,
recommends that States parties make more use of temporary special measures such as
positive action, preferential treatment or quota systems to advance women's integration into
education, the economy, politics and employment.
It is the Applicants submission your Honours that, the respondent State vide the Article 21 of
its’ very own Constitution obligation to observe, respect, promote, and fulfil human rights.
The Constitution requires the State in so doing to address the needs of vulnerable groups in
society such as women... which position the Applicants submit have not only been
unfulfilled but violated which violations will be address conclusively in the next limb of
argument.
Your Honours save as paragraph 19 of the facts provides the Applicants have sought an
interpretation of the two-thirds gender rule from the Courts in Banista the last being the
advisory opinion of the Supreme Court that gave the parliament one year within which it was
to enact a legislation that details the mechanism for the realization of two-thirds gender rule
in the Constitution of elective and public institutions.

3. WHETHER BANISTA HAS VIOLATED ITS OBLIGATIONS UNDER THE

MAPUTO PROTOCOL AND OTHER INTERNATIONAL HUMAN RIGHTS
INSTRUMENTS IN RESPECT OF THE CONTINUING FAILURE OF THE
EXECUTIVE TO ENSURE TWO-THIRDS GENDER RULE IS
IMPLEMENTED IN APPOINTMENTS TO STATE ORGANS AND OTHER
PUBLIC INSTITUTIONS.
Stemming from the foregoing arguments in issues two hereinabove Applicants invites the
Court’s attention to the appointive posts within the Republic of Banista which to say the least
have not been fulfilled by the State and as such stands violated going by the two thirds gender
representation rule.
The Applicants in this regard would like to submit to this Honourable Court on the following
limbs of arguments:
3.1. The Power vested on the Executive arm of government of Banista to appoint
Women in government in the modern era Your Honours are underrepresented with their
participation rate in governance of states standing still at 23.3%. Despite the Constitution
discouraging discrimination of women under Article 27 (8) that obligates the state to ensure
that not more than two-thirds of appointive and elective posts should be of the same gender
women have still been overlooked.
To appoint in this context your Honours as defined the Black’s law dictionary means to
assign a job to someone he power to appoint is vested in the State by the Constitution save
Article 27 (8) of the Banista Constitution as read with Articles 19 and 21.
3.2. Discrimination of women during appointments which violates not only the
Constitution of Banista but also International instruments that Banista has
ratified and are part of its laws under Article 2(5)&(6) of its’ Constitution
Your Honours, the Maputo protocol under Article 1 provides for the definition against
women as "Discrimination against women" means any distinction, exclusion or restriction or
any differential treatment based on sex and whose objectives or effects compromise or
destroy the recognition, enjoyment or the exercise by women, regardless of their marital
status, of human rights and fundamental freedoms in all spheres of life.”
From the foregoing definition the Applicant submits that the respondent State has
discriminated against women owing to the fact that appointive positions unlike any other
position, the exercise authority exercises the power to choose based on merits persons to fill
the said appointive posts. With this in mind the Republic of Banista has not only breached its’
obligation under the national laws like the Constitution that advocates for equality but also
breached Article 2 of the Maputo protocol which obligates the state parties to combat all
forms of discrimination against women through appropriate legislative, institutional or other
measures.
The Applicants submits that the other measures that Article 2 above insinuates include but
not limited to ‘appointments’, ‘nominations’ inter alia.
The Applicant cites the case of United States Diplomatic and Consular Staff in Tehran in
which case the Court defined what ‘breach of International obligation’ really is. The Court
stated:
“There is a breach of an international obligation when conduct attributed to a State as a
subject of international law amounts to a failure by that State to comply with an international
obligation incumbent upon it. The essence of an internationally wrongful act lies in the non-
conformity of the State’s actual conduct with the conduct it ought to have adopted in order to
comply with a particular international obligation. Such conduct gives rise to the new legal
relations which are grouped under the common denomination of international
responsibility.”
The Respondent State had the obligation to ensure the two-thirds gender representation is
achieved.

4. PRAYERS
For the foregoing submissions the Applicants prays to this Court find:
1. That the Court has Jurisdiction to adjudicate upon this matter
2. That the Applicants have the Locus Standi
3. That the matter is admissible
4. That Respondent State has violated its obligations under the Maputo protocol; and
other international human rights instruments in respect of the continuing failure of the
parliament to enact legislation for the implementation of the two-thirds gender rule in
elective positions
5. That the Respondent has violated its obligations under the Maputo protocol and other
international human rights instruments in respect of the continuing failure of the
executive to ensure two-thirds gender rule is implemented in appointments to state
organs and other public institutions horizontal
6. The Costs of this application be in favour of the Applicants